“After analysis, our conclusion is that the police regulation of the City of Luxembourg does not comply with national legislation or international treaties. These are the arguments that lead me to the decision not to approve this provision of the regulation,” said interior minister Taina Bofferding (LSAP) Tuesday morning, regarding the ban on begging adopted on 27 March by the municipal council of the City of Luxembourg.
This decision by the DP-CSV majority had created controversy in the city, with the opposition denouncing a purely “symbolic” measure of questionable legality. The decision of the Ministry of the Interior, which must, since 1 January 2023, approve the general police regulations of the municipalities, was therefore highly anticipated.
“The role of the Ministry of the Interior is to control the legality of the law, it s not a political control, but a legal one,” Bofferding said. The ministry’s decision comes less than a month before the municipal elections and the issue of insecurity in the capital has become a major issue in the campaign.
Three legal arguments
Three legal arguments are at the heart of the ministry’s decision not to approve article 42 of the police regulation, which introduces a ban on begging from 7am to 10pm in certain public areas of the city. The particularity of this ban is that it covers both simple and organised begging.
The first legal argument is that there is “no reason to intervene in the area of begging by regulation,” said the ministry. However, “the local council can intervene and take criminal measures if it can prove that they are necessary,” but it “has not been able to demonstrate the need to criminalise simple begging for reasons of public order.”
Not in accordance with the law
The second argument was that the law was not in conformity with national law, in particular with the provisions of the criminal code. These prohibit “aggravated, intrusive or aggressive forms of begging,” the ministry explained. In national law, “not only has simple begging never been considered a phenomenon likely to threaten public order, but it has also been decriminalised,” it added. However, the local council “seems to be reintroducing the ban on simple begging at local level.”
Finally, as a third argument, the ministry noted that there is non-compliance with international law, in particular with the Lacatus v. Switzerland judgment of the European Court of Human Rights. “The judges held that the ban on invasive begging was constitutional, whereas the ban on passive (silent) begging was not,” the ministry said. While article 42 “amounts to a general de facto ban,” the ECHR “concluded that the outright prohibition of begging was to be considered as an interference with the rights of the persons concerned in a democratic society,” explained the ministry.
Circular in preparation
After this disapproval by the ministry, the question arises around the municipalities, such as Diekirch, Dudelange and Ettelbruck, that have already introduced similar bans. The bylaws of these communes, which were adopted before 1 January 2023, had not been submitted to the interior ministry for approval. “We were already in contact with the municipalities to explain to them that their provisions do not comply with the legislation,” explained Bofferding. “We will now issue a circular to inform all municipalities.”
However, the debate seems to be far from over: the aldermanic college of the City of Luxembourg announced in the wake of the interior ministry’s press conference that it would hold a press briefing at 2pm on “the partial approval of the general police regulations by the Minister of the Interior and more specifically on the provisions relating to begging.”
This article was first published in French on Paperjam. It has been translated and edited for Delano.